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Dept. of Public Works & Bldgs. v. Cohen

DECEMBER 21, 1972.

THE DEPARTMENT OF PUBLIC WORKS AND BUILDINGS, PETITIONER-APPELLANT,

v.

SADIE COHEN ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Peoria County; the Hon. IVAN L. YONTZ, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

The petitioner on behalf of the People of the State of Illinois filed a condemnation action against the defendants, Sadie Cohen and Lillian Cohen, the owners of a 2.018 acre tract of real estate located in the city of Peoria and which was the subject matter of this suit. After trial an award of $85,000.00 was returned by the jury upon which the court entered judgment from which this appeal stems.

The issue presented for review is whether the trial court ruled correctly on certain objections to evidence. It is apparent from the record and the oral argument of counsel before this court that petitioner prior to trial presented to the trial judge in chambers a motion in limine which sought to exclude all references during the course of the trial to tax evaluation, assessment or amounts paid on the property subject to condemnation. Some argument regarding the applicable law ensued, but the trial court made no ruling on the motion and the same through inadvertence or for some other reason unknown to us was never filed. On cross-examination of petitioner's witness Kienzler, an appraiser, counsel for the defendants established that the amount of taxes paid on the property was a factor which he considered in making his appraisal as to evaluation. On cross-examination of petitioner's witness Bontjes, it was established by counsel for the defendants that the amount of taxes paid was not a factor relied upon in arriving at his evaluation of the property. Petitioner's objection to this type of testimony was overruled by the trial court.

During a conference outside the presence of the jury counsel for the defendants informed the court that he desired to ask of his witnesses whether or not they included the amount of taxes paid on the real estate as a factor in their formation of their opinion as to the value of the property and if so, the amount of taxes paid. This request was objected to by the petitioner on the ground that testimony regarding the amount of taxes paid would be a prejudicial element for the jury to consider. After considerable argument in chambers on this matter it was the trial court's ruling that such questions could be asked by counsel for the defendants and the answers thereto received by the jury.

Counsel for defendants then called as a witness a Mr. McDonald, a real estate broker and appraiser, and upon direct examination the following colloquy ensued:

"I studied this situation over a period of six months in reaching my opinion of the value.

Q. And in that study, you may state whether or not you determined what the taxes, the real estate taxes on this property were, for the year 1970?

A. Yes, sir.

Q. And what were the taxes on this piece of property for the year 1970?

A. Two thousand eight hundred and some odd dollars."

Mr. Heilman, a real estate broker, was next called by the defendants and upon direct examination the matter as to the amount of real estate taxes paid was elicited in the following manner:

"Q. Did you know — during your study of the situation, in the processing toward that opinion, you may state whether or not you determined the taxes for the calendar year 1970?

A. As a practical matter, I always check taxes on any property that I'm appraising ...


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